FEDERAL COURT OF AUSTRALIA
Willis v Repatriation Commission [2012] FCA 399
Citation: Willis v Repatriation Commission [2012] FCA 399 Appeal from: Willis and Repatriation Commission [2011] AATA 67 Parties: PETER ROBERT WILLIS v REPATRIATION COMMISSION File number: VID 183 of 2011 Judge: BROMBERG J Date of judgment: 19 April 2012 Catchwords: DEFENCE AND WAR – whether veteran entitled to special rate of pension – s 24(1)(c) and s 24(2) of the Veterans’ Entitlements Act 1986 – whether failure by Tribunal to provide adequate reasons – content of duty to provide adequate reasons discussed – the interpretation of the “alone test” in s 24(1)(c) discussed – failure by Tribunal to adequately expose its reasoning – appeal allowed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 44
Migration Act 1958 (Cth) s 430
Veterans’ Entitlements Act 1986 (Cth) ss 24, 24(1)(c), 24(2)Cases cited: Dornan v Riordan (1990) 24 FCR 564
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263
Roncevich v Repatriation Commission (2005) 222 CLR 115
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
ARM Constructions v Deputy Commissioner of Taxation (1986) 10 FCR 197
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259
Oak Valley (Maralinga) Inc v Aboriginal & Torres Strait Islander Commission (1999) 98 FCR 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
TelePacific v Commissioner of Taxation (2005) 218 ALR 85
Narbey v Federal Commissioner of Taxation (2008) 111 ALD 312
Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368
Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259
Hunter v Transport Accident Commission (2005) 43 MVR 130
Carlisle Homes Pty Ltd v Barrett Property Group Pty Limited [2009] FCAFC 31
Alexander v Australian Community Pharmacy Authority [2010] FCA 189
Moorcroft v Repatriation Commission (1999) 58 ALD 143
Cavell v Repatriation Commission (1988) 9 AAR 534 Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Flentjar v Repatriation Commission (1997) 48 ALD 1 Repatriation Commission vHendy [2002] FCAFC 424
Repatriation Commission v Smith (1987) 15 FCR 327
Byrne v Repatriation Commission [2001] FCA 1134
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Butcher [2007] FCAFC 36Date of hearing: 28 October 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 53 Counsel for the Applicant: Mr C Thomson Solicitor for the Applicant: Peter J Liefman Counsel for the Respondent: Ms C Dowsett Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 183 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: PETER ROBERT WILLIS
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
19 APRIL 2012
WHERE MADE:
MELBOURNE
THE COURT…
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CaseChat Overview and Summary
The central legal issues before the court were whether the AAT had correctly interpreted and applied the statutory provisions in s 24 of the Act, specifically focusing on the “alone test” outlined in s 24(1)(c). This section stipulates that a veteran must be "by reason of incapacity from that war caused injury or war caused disease, or both, alone, prevented from continuing to undertake remunerative work." Additionally, the court had to examine if the AAT's failure to provide sufficient reasoning constituted a procedural error that warranted setting aside the tribunal's decision.
The court found that the AAT had not adequately justified its conclusion that Mr Willis's war-caused conditions were not the sole reason preventing him from continuing remunerative work. The tribunal had considered other factors such as Mr Willis's lack of formal qualifications, inability to use a computer, living in a remote area, and his age, but failed to sufficiently articulate how these factors related to the statutory requirements. The court highlighted that the AAT's reasoning was insufficient in explaining how these additional factors were considered in relation to the statutory “alone test.” Consequently, the court concluded that the AAT had not properly discharged its duty to provide adequate reasons for its decision, leading to the appeal being allowed.
The court ordered that the appeal be allowed, the decision of the AAT be set aside, and the case be remitted to the AAT for reconsideration. Furthermore, the court mandated that the respondent bear the costs of the appeal. The detailed reasoning provided by the court underscores the necessity for tribunals to clearly articulate their reasoning, particularly when statutory interpretation and application are involved.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal of 8 February 2011 be set aside.
3. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again.
4. The respondent pay the applicant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Finally, in the assessment to be made as to whether the veteran has been prevented from working, it is necessary to identify the work that the veteran had been undertaking. In that respect, and as a number of authorities have stated, it is the type of work which the veteran had been doing, not the veterans last job, which is relevant: Smith at 333; Hendy at [36]; Repatriation Commission v Butcher [2007] FCAFC 36 at [13] (Tamberlin, Nicholson and Tracey JJ). Consideration of the reasons given by the AAT The AAT’s decision identified that the Repatriation Commission had accepted that Mr Willis suffered from the following war-caused medical conditions:·Post-Traumatic Stress Disorder (“PTSD”);·Bilateral Censorineural hearing loss;·Bilateral Tinnitus;·Tinea; and ·Alcohol Dependence, (“Mr Willis’s war-caused conditions”). At [4] of its decision, the AAT set out the issues that it needed to consider as follows:·Is Mr Willis unable to work for more than 8 hours per day?·When and why did Mr Willis stop working?·Do Mr Willis’s accepted war-caused conditions alone prevent him from working? The AAT’s decision is divided into three sections each one headed by one of the three issues identified above. Under the heading “Do Mr Willis’s accepted war-caused conditions alone prevent him from working?”, the AAT set out paragraphs (a) and (b) of s 24(1). It noted that the parties agreed that Mr Willis met the criterion in s 24(1)(a) and accepted that Mr Willis was unable to work for more than 8 hours per week on the basis of his war-caused conditions. The Tribunal then turned to consider s 24(1)(c). It noted that in Flentjar, Branson J set out the issues posed by s 24(1)(c) and then set out the four Flentjar questions as follows:1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? Dealing with the first Flentjar question, the AAT found that “the remunerative work undertaken by Mr Willis included labourer, process worker, foreman and handyman”. The AAT answered the second Flentjar question in the affirmative. The AAT’s reasons then turned to the third Flentjar question and the matter most pertinent to the grounds of challenge here being considered. The Tribunal stated that there “are also other factors to be taken into account in relation to Mr Willis’s employability apart from his accepted war-caused conditions”. The AAT then set out the comments of Nicholson J at paragraphs [39] and [40] of Forbes, to which I have referred. The AAT then recounted without comment, the evidence of a consultant psychiatrist, an occupational physician and an occupational psychiatrist. Paragraph [38] of the AAT’s decision contains the relevant factual findings made. They are as follows:·Mr Willis stopped working (in his last remunerative employment) because of his neck and shoulder injury and then the closure of the factory in which he worked;·he has an inability to walk long distances and a dislike of hills and stairs; ·he left school after Year 9 and has no formal qualifications; ·he does not know how to use a computer; ·he lives in a relatively remote area and has told the Tribunal that there is little work available;·he is 60 years of age; and ·he has not been in the workforce since ceasing work around 1998.